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HomeMy WebLinkAbout96-0937 CriminalCOMMONWEALTH V® PATRICK KELLY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0937 CRIMINAL TERM CHARGE: HARASSMENT APPEAL FROM SUMMARY IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., October 4, 1996. In this summary offense case, Defendant has filed an appeal pro se to the Superior Court following his conviction and sentence for the summary offense of harassment. In a statement of matters complained of on appeal, Defendant indicates that he is challenging the sufficiency of the evidence.~ PROCEDURAL HISTORY; STATEMENT OF FACTS Defendant filed an appeal in this court from a summary conviction for harassment on May 28, 1996. He failed to appear for the de novo t~ial on June 25, 1996, and this court dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure 1117.2 Later on that date, Defendant filed a petition to vacate the order dismissing the appeal. At a hearing on this petition, Defendant stated that he had been present in the courthouse for his trial, but had been unable to locate the courtroom. Over the This statement was filed on October 3, 1996. Defendant has not complied with a direction pursuant to Pennsylvania Rule of Appellate Procedure 1911(a) and Pennsylvania Rule of Judicial Administration 5000.6 that he deposit one-half of the estimated cost of the trial transcript. 2 Order of Court, June 25, 1996. NO. 96-0937 CRIMINAL TERM Commonwealth's objection, the court granted Defendant's petition, vacated the order of dismissal and scheduled a new trial date.3 Defendant appeared for the rescheduled trial on August 6, 1996. At the commencement of the proceeding, the prosecutor expressed some concern as to Defendant's condition, and Defendant conceded that he had been drinking prior to trial. However, he indicated that he would be able to proceed and he was permitted to do so, without incident. The facts presented at trial dispute. On Wednesday, January 31, were not substantially in 1996, in the early morning hours, Defendant, while in an intoxicated state, telephoned the Lower Allen Township Police Department and left the following recorded message: I want to tell you Lower Allen Township, kiss my ass. But I'll tell you what, the officer you have on patrol right now, I want to commendate him. And the rest of you can suck a dick cause you're a piece of shit. You ought to have more officers just like the guy that just went through the Cedar Cliff High School cause the rest of you are worthless pieces of shit and I don't give a shit who the hell you are. I'm Patrick A. Kelly and I'm Order of Court, July 23, 1996. The Commonwealth's objection was not without some merit, inasmuch as the court had waited fifteen minutes for Defendant to appear at his trial in the first instance, and the Commonwealth had been prepared to proceed with its witnesses. See Order of Court, June 25, 1996. NO. 96-0937 CRIMINAL TERM telling you what the fucking bear shit in the 4 woods. You worthless morons. Fuck you. Defendant called back sometime later that morning and left a second message: Hello this is Patrick A. Kelly calling to commendate an officer apparently who knows what he's doing and you can tell the god damn son of a bitch that has a recording before previous to my call that she can suck a dick too, because all of you are assholes and I want you to know who the hell I am and I'm telling you. I will appreciate, well who the hell knows what I'm going to appreciate. But, your officer right now today was a very good man. I don't know if its going to mean anything, but I would like to recommend him for police commissioner cause the rest of you are worthless. I don't even know who the hell you are, but you know who I am and I'm thankful that you can understand what I'm saying. Goodbye.5 These messages were predictably received by employees of the township (Christine Anthony and Arlene Lenker) later in the morning. The employees were disturbed and shocked at the content of the messages and reported them to a corporal in the department. Defendant was subsequently interviewed by Detective Jeffrey S. Huff of the Lower Allen Township Police Department. Defendant admitted that he had made the calls. Detective Huff filed a Commonwealth's Exhibit 1. Id. NO. 96-0937 CRIMINAL TERM citation under Section 2709(a)(3) of the Crimes Code charging Defendant with summary harassment.6 On his appeal from summary, Defendant was found guilty by this court and sentenced to pay the costs of prosecution and a fine of $100.00, and to undergo a period of probation of 90 days.7 The fine and costs remain unpaid. Defendant filed an appeal from the judgment of sentence to the Superior Court on September 5, 1996. As of the date of this opinion, he has not paid the filing fee for the appeal. DISCUSSION "The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Jones, Pa. Super. , , 672 A.2d 1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). 6 Act of December 6, 1972, P.L. 1482, Sl, as amended, 18 Pa. C.S. §2709(a)(3) (Supp. 1996). Detective Huff obviously elected not to charge Defendant with the more serious offense of harassment by communication. See Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S. ~5504. Order of Court, August 6, 1996. 4 NO. 96-0937 CRIMINAL TERM For present purposes, summary harassment is described in the Crimes Code in the following terms: A person commits the crime of harassment when, with intent to harass, annoy or alarm another person ... he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S. §2709(a)(3) (Supp. 1996). A "course of conduct" is defined as "[a] pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct." Id., §2709(f) (emphasis added). One "intends" a result in such circumstances if "it is his conscious object ... to cause such a result."8 A person's intention is 'often discernible by inference. Commonwealth v. Grife, 444 Pa. Super. 362, 664 A.2d 116 (1995). Voluntary intoxication does not, under the Crimes Code, "negative the element of intent," as a general rule. Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. ~308. In the present case, it is believed that the evidence was sufficient to enable the trier of fact to find each element of the offense of summary harassment, as defined above, beyond a reasonable doubt. Defendant, on more than one occasion, contacted the Lower Allen Township Police Department with messages that were Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §302(b)(1); see id., §103 (definition of "intentionally"). 5 NO. 96-0937 CRIMINAL TERM predictably received by employees of the department; the messages contained lewd and intimidating language, serving no legitimate purpose, which alarmed and seriously annoyed the recipients; the intent of Defendant to harass, annoy and/or alarm those receiving the messages can be reasonably inferred from the circumstances; his intoxication was not evidence of a lack of such intent. Although it is true that the police might have chosen a course other than prosecution as a result of these offenses, it is also true that they might have charged Defendant with two misdemeanors instead of a single summary offense.9 It was, in any event, not within the province of the fact finder to interfere with this prosecutorial function through the verdict. For the foregoing reasons, the court believes that its verdict of guilty of summary harassment was supported by the evidence, and that the judgment of sentence was properly imposed. Scott C. Allen, Intern Office of the District Attorney Patrick Kelly, Pro Se 22 Grinnel Drive Camp Hill, PA 17011 : rc See note 6 supra.